Gujarat High Court
The State Of Gujarat vs Pragnaben Delipkumar Raval on 20 August, 2024
NEUTRAL CITATION
R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 254 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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THE STATE OF GUJARAT
Versus
PRAGNABEN DELIPKUMAR RAVAL & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Opponent(s)/Respondent(s) No.
1,2
MR RAHUL K DAVE(3978) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/08/2024
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed Page 1 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined by the learned Special Judge and Additional Sessions Judge, Fast Track Court No. 2, Gandhinagar (hereinafter referred to as "the learned Trial Court") in Special ACB Case No. 7/2004 on 29.09.2005, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 7, 12 and 13(1)(2) of the Prevention of Corruption Act, 1988 (hereafter referred to as "the PC Act"
for short).
The respondents are hereinafter referred to as the accused as they stood in the rank and file in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 That the accused no. 1 was the Principal of Varsoda Primary School and the accused no. 2 was the Beet Inspector of Mansa Taluka and both the accused were public servants. The complainant Alpaben w/o Kamleshkumar Narandas Patel residing at Dhuniyapur, village Lodra, Taluka Mansa, District Gandhinagar was a Page 2 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined Vidya Sahayak in Varsoda Primary School. That in Class IV, a student Sureshkumar Thakore was studying and the complainant - Alpaben w/o Kamleshkumar Narandas Patel was the class teacher and in the final exams as the student Suresh Thakore had failed in three subjects, he was declared failed. That the accused no. 2 came for supervision and checked the attendance of the student and found that he had 80% attendance and as per rules, he had to be passed but was declared failed and a report against the complainant was to be filed with the District Education Officer. Both the accused agreed to settle the matter and the accused no. 2 demanded an amount of illegal gratification of ₹500/- and told the complainant to give the amount to the accused no. 1. The complainant did not want to pay the amount of the illegal gratification and went to the ACB Police Station, Ahmedabad Rural at Gandhinagar District and filed the complaint under Sections 7, 12, 13(1) and 13(2) of the PC Act which was registered at C.R. No. 9/2000 06.07.2000.
2.2 The Trap Laying Officer called the panch witnesses and Page 3 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined the complainant gave five currency notes of the denomination of ₹100/- as the amount of illegal gratification and the complainant and the witnesses were introduced to each other. Under the instructions of the Trap Laying Officer, Head Constable - Ahmed Zakaria Syed explained the characteristics of anthracene powder and ultraviolet lamp to the complainant and the panch witnesses and the demonstration of anthracene powder and ultraviolet lamp was conducted in the presence of the complainant and the panch witnesses. That all the currency notes given by the complainant were smeared with anthracene powder and placed in the empty purse of the complainant and the Trap Laying Officer gave the necessary instructions to the complainant and the panch witnesses.
The panchnama part-I was drawn and the Trap Laying Officer and the panch witnesses affixed their signatures on the panchnama and the trap was arranged. The panch witnesses, complainant, Woman Police Constable, Trap Laying Officer and other members of the raiding party left in government jeep No. GJ-1-G-2985 and GJ-1-G-1193 at Page 4 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined about 09:40 AM and went from Pethapur Chokdi, Badpura, Rangpur and reached Varsoda village at about 11.00 am and the complainant and panch no. 1 went walking to Varsoda Primary School. That the complainant met the accused no. 1 and in the presence of the panch witness, the accused no. 1 demanded the amount of illegal gratification and the complainant took the tainted currency notes from the purse and gave it to the accused no. 1 who accepted the same and put it in her purse which was hanging on a nail on the wall. The complainant gave the predetermined signal and the panch no. 2 and the members of the raiding party came and caught the accused no. 1 red handed. The tainted currency notes were recovered from the purse of the accused no. 1 and after the tests were conducted, the panchnama part-II was drawn and the panch witnesses and the Trap Laying Officer affixed the signatures on the panchnama part-II.
2.3 The Investigating Officer recorded the statements of the connected witnesses and collected the necessary documents, including the service record of both the accused Page 5 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined and after the order of sanction for prosecution was received from the Competent Authority, a charge sheet was filed before the Sessions Court, Gandhinagar which was registered as Special ACB Case No. 7/2004. 2.4 The accused were duly served with the summons and both the accused appeared before the learned Trial Court, and after the procedure under Section 207 of the Code of Criminal Procedure was followed, a charge at Exh. 19 was framed against the accused and the statements of the accused were recorded at Exhs. 20 and 21 respectively, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record.
2.5 The prosecution produced the following oral evidence to bring home the charge against the accused.
Sr. No. PW Particulars Exh. 1. 1 Patel Alpaben Kamleshkumar 35 2. 2 Jayshriben Harishbhai Vyas 65 3. 3 Shankarbhai Khatubhai Parmar 72 4. 4 K.K. Mysorewala 76 2.6 The prosecution also produced the following
documentary evidence to bring home the charge against the Page 6 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined accused.
Sr. No. Particulars Exh. 1. Complaint 36 2. Panchnama 66 3. Seizure Memo 67 4. Documents 79 5. Medical Certificate 80 6. Travel Diary 81 7. Letters 82 8. Letters 83 9. Forwarding Letter 84 10. Order of sanction for prosecution 77 11. Order of sanction for prosecution 78 2.7 The learned Additional Public Prosecutor filed the
closing pursis at Exh. 85 and the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard the learned trial Court by the impugned judgment and order was pleased to acquit both the accused from all the charges leveled against them.
3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant - State has Page 7 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined filed the present appeal mainly stating that the impugned judgement and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record of the case and the learned Trial Court ought to have believed the evidence of the complainant who has been examined at Exh.
35. That the learned Trial Court has very minutely examined the evidence of the complainant and has thereby created irrelevant doubts and has committed a grave error in not believing the evidence of the prosecution and has acquitted the accused. It not ought to have been believed that there are some minor contradictions in the examination-in-chief and cross-examination of the complainant and the learned Trial Court has given undue weightage to this aspect. The learned Trial Court has not considered that the other witnesses have also supported the evidence of the prosecution and has created unnecessary doubts and wrongly evaluated the evidence and has erred in coming to the conclusion of acquittal. The learned Trial Court has unnecessary created doubts regarding the predetermined signal, when the learned Trial Court ought to Page 8 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined have appreciated that generally in corruption cases, there is no need how the signal is given by the complainant to the ACB staff. The ACB staff came into the room only when the signal was given by the complainant and has arrested the accused and the learned Trial Court ought to have believed that the ingredients of demand, acceptance and recovery have been proved by the prosecution. That Competent Authority has followed all the necessary procedure and given the sanction and the Trap Laying Officer and the Investigating Officer have fully supported the case of the prosecution and when the tainted currency notes smeared with anthracene powder have been recovered from the respondent no. 1 and seized from the respondent no. 1 at the time of the raid, this evidence ought not to have been ignored. The learned Trial Court has not properly appreciated the documentary evidences and the impugned judgement and order of acquittal is contrary to law and evidence on record and deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant Page 9 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined State and learned advocate Mr. Rahul K. Dave for the respondents. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms. Jirga Jhaveri has taken this Court through the entire evidence of the prosecution and has submitted that both the respondents were persons working in the Education Department and the respondent no. 2 had demanded the amount of illegal gratification from the complainant who was also a Vidhya Sahayak - Teacher in the Varsoda Primary School and the complainant has fully supported the case of the prosecution. It is proved that at the time of the demand, both the respondents were present and the respondent no. 2 had told the respondent no. 1 to accept the amount of illegal gratification which was accepted by the respondent no. 1 on behalf of the respondent no. 2. In the entire evidence before the learned Trial Court, the prosecution has proved all the ingredients of demand, acceptance and recovery but the learned Trial Court has misread the evidence and has not appreciated the Page 10 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined evidence in proper perspective. That the impugned judgement and order is required to be quashed and set aside and the respondents must be found guilty for the said offences.
6. Learned advocate Mr. Rahul K. Dave for the respondents has submitted that in the entire evidence of the prosecution, the evidence is highly doubtful as the panch witnesses have not signed on the complaint and there is no evidence that the complainant had given the complaint in the presence of the panch witnesses and they were made aware of the facts of the complaint. That in the evidence, the presence of an independent witness - Ilaben is found throughout the trap but even though she was an eye witness, she has not been examined before the learned Trial Court. From the evidence of the panch witness, it has also emerged on record that the panchnama was not dictated by the panch witnesses and there is a contradiction in the place of offence as per the panchnama. That the respondent no. 2 was not present at the time of the acceptance and the learned Trial Court has discussed all the evidence produced Page 11 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined by the prosecution and has concluded that the prosecution has not proved the case against the respondents beyond reasonable doubts in a well reasoned judgement. That it is settled law that unless the judgement and order of the learned Trial Court is perverse and illegal, no interference of the Appellate Court is required and the prosecution has not been able to prove that there is any perversity or illegality in the impugned judgement and order and hence, the learned advocate for the respondent has urged this Court to reject the appeal of the appellant.
7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a Page 12 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two- views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And Page 13 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka,
"13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned Page 14 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-
"7. It is well settled that: -
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."
7.1 In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All Page 15 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
7.2 The Apex Court, in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2022 0 Supreme (SC) 1248, has observed in Para No. 68 as under:
"68. What emerges from the aforesaid discussion is summarised as under: -Page 16 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024
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(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (I) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of Page 17 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)
(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)
(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a Court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof.
On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
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(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the Court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the Court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is a presumption of innocence in favour of the accused that has finally culminated when a case ends in an acquittal. The learned Trial Court has appreciated all the evidence and when the Page 19 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. That there is no inhibition to reappreciate the evidence by the Appellate Court but if after reappreciation, if the view taken by the learned Trial Court is a possible view, there is no reason for the Appellate Court to interfere in the same.
9. To bring home the charge against the accused, the prosecution has examined PW1 - Alpaben Kamleshkumar Patel at Exh. 35 and the witness is the complainant who has stated that at the time of the incident, she was working as a Teacher (Vidhya Sahayak) in Varsoda Primary School. That the accused no. 1 was the Principal and the accused no. 2 was the Beet Inspector who had the job of inspecting the schools. That the accused no. 2 came to the school on 24.06.2000 for inspection and the complainant was the class teacher of Class III. The accused no. 2 inspected the result sheet and a student named Suresh Thakore had failed in three subjects and he was declared failed in the Page 20 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined result sheet. The school term had begun on 12 th June and the Inspector had come on 24.06.2000. The accused no. 1 was in the office and the complainant was called to the office where the failing of the student was discussed and the complainant was told that if a student had 80% attendance, he should be passed. That the accused no. 2 told the complainant that he would have to complain to the District Education Office and the procedure would have to be done and the complainant told him that she was on adhoc basis and would suffer a great loss and at that time, the accused no. 2 looked at the accused no. 1 and told her that the Vidhya Sahayaks were not keeping relation and the accused no. 1 asked the accused no. 2 how the matter would be settled and the complainant would agree to whatever he had said. The accused no. 2 demanded an amount of ₹500/- and told her that the amount could be given by the 10 th to the accused no. 1 and the same was confirmed by the accused no. 1. That the complainant did not want to give the amount of illegal gratification and hence, she went to file the complaint after making a phone call from Prantij to Page 21 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined Parmar Saheb who was the ACB officer at Gandhinagar. That on 06.07.2000 she was called to the Pathik Ashram at 07:30 am and two panch witnesses were present in Pathik Ashram, Room No. 8 where she was introduced to the Constables and the panch witnesses. That her complaint was recorded and she had given five currency notes of the denomination of ₹100/- each to ACB member - Syedbhai who took some white powder and a battery and explained to them the characteristics of the white powder. The battery lamp was shown and blue colour marks were found on the fingers of Syedbhai. That the powder was applied on the currency notes and the currency notes were folded and put in her small purse. That necessary instructions were given to them and they went in a jeep to Varsoda School and she and the panch witness went into the school to the room of the accused no. 1 but the distribution work of the uniform of students was going on and there was a crowd and hence, she took the panch witness to her classroom. After sometime during recess, she came out of her class and saw that the crowd had lessened and she and the panch witness Page 22 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined went into the room of the accused no. 1. The accused no. 1 and Ilaben - a Vidhya Sahayak were sitting and the complainant went and told the accused no. 1 that she had brought the amount demanded by the accused no. 2, and the accused no. 1 told her to give it when she would get her salary but the complainant told the accused no. 1 that she had to give her salary to her father-in-law and she had brought the amount today and hence, the accused no. 1 told her to give the amount and she would hand it over to the accused no. 2. That she took the amount from the small purse and gave it to the accused no. 1 while she was seated in the chair and she accepted the same with her right hand and the complainant went out and gave the determined signal and the members of the raiding party came and caught the accused. That Syedbhai also came and conducted the necessary tests after the windows and doors were closed and the panch no. 2 recovered the amount from the purse which was hanging on the wall. During the cross- examination by the advocate for the accused, the witness has stated that Ilaben is the niece of her father's sister and Page 23 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined she was not called to the ACB Office to file the complaint by Parmar Saheb. That the accused no. 1 did not demand for any amount of illegal gratification from her and the accused no. 1 did not have any role in the demand of illegal gratification and was not to get any share of the amount of illegal gratification. That the accused no. 1 was present when the demand for illegal gratification was made but she could not say anything as they both were teachers. That the complainant herself had agreed to pay the amount to the accused no. 2 and the accused no. 2 had told her to give the amount to the accused no. 1 but the accused no. 1 did not tell her that she would handover the amount to the accused no. 2. That the complainant herself had tried to handover the amount to the accused no. 2 through the accused no. 1 and on 17.06.2000, the accused no. 1 was present in a meeting of Principals. That her husband is an advocate and she had never come to Gandhinagar before but all the lady teachers were fed up and they had told her husband about the harassment that they had. That she had told her husband about the illegal gratification and her husband had Page 24 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined telephoned the ACB Office but she does not know on which number he had called and she had narrated the details of the complaint on the telephone. That the Police had told her that they were coming to Gandhinagar with the complaint and she should also come to Gandhinagar. That when she came to Gandhinagar, she met the panch witnesses and she had affixed her signature on the complaint but she does not know whether the panch witnesses had affixed their signatures on the complaint. That she had to give her salary to her father-in-law and she had brought the amount for illegal gratification from her house. That when she went to the house of the accused no. 1, no conversation regarding illegal gratification had taken place and when she went in the room of the accused no. 1, the accused no. 1 did not demand for any amount of illegal gratification. That the accused no. 2 was not present at the time of the trap and she was absent on duty from June 1999 to February 2000. That she does not know which class was she in-charge from June 1999 to February 2000 and does not remember which class teacher she was at the time of the trap. That she does Page 25 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined not know who prepared the result sheet from June 1999 onwards and does not know how many examinations were taken in the school during the year. That she does not know the rules and regulations of the examinations and does not know how many examinations were conducted by her. 9.1 The prosecution has examined PW2 - Jayshriben Hareshbhai Vyas at Exh. 65 and the witness is the panch witness who has fully supported the case of the prosecution and has narrated all the events that had taken place when she and the other panch witness - Yogesh Gunvantrai Shukla had gone to Pathik Ashram, Room No. 8 on the day of the trap. The witness has stated that they were introduced to the complainant and the complainant gave five currency notes of the denomination of ₹100/- and the policeman took a bottle from the bag on which something like ultra-powder was written and he applied the powder on the currency notes and they were shown in a machine and the currency notes had blue colour light on them. That the ACB Officer told the other officer and he folded the currency notes and placed them in the small purse of the Page 26 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined complainant. That they went and sat in the vehicle and went to Varsoda village and she went along with the complainant and her small child, the other panch witness and other officers and they halted the vehicle outside of Varsoda village. That the complainant and she went walking to the school and went and met the principal and at that time, the distribution of the uniform of the children was going on and she and the complainant went to the class of the complainant and waited for sometime. During recess, she and the complainant went to the accused no. 1 and the complainant told the accused no. 1 that she had brought the money but the accused no. 1 told her not today and to give it when the salary would be received but the complainant insisted to take the amount as she had brought it and hence, the accused no. 1 took the amount and stated that she would give it to the accused no. 2. That the tainted currency notes were given by the complainant with her right hand and accepted by the accused no. 1 in the right hand and the purse of the accused no. 1 was hanging on a nail on the wall which was removed and the Page 27 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined currency notes were placed in the purse and the purse was once again kept hanging on the nail on the wall. That the complainant came out of the room and gave the predetermined signal and she was in the class and she had given the signal from the classroom. That accused no. 1 came out of the classroom and at that time, the Woman Constable, the other panch witness - Yogendrabhai and the other members of the raiding party came and the panch no. 2 recovered the currency notes from the purse hanging on the nail. That the test of light was done and the panchnama was drawn and she had affixed her signature on the panchnama which is produced at Exh. 66 and the seizure memo at Exh. 67. During the cross-examination by the learned advocate for the accused, the witness has stated that she does not know who was writing the panchnama and the Police Officer had written the panchnama and had asked her to affix the signature and she had signed on the same. That she did not dictate the panchnama and the police was not writing as per her dictation and she does not know which officer had written the complaint. That she had Page 28 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined affixed her signature on the complaint and Pathik Ashram Room No. 8 was written on the complaint. That she does not know whether the windows and doors of the room were closed and opened by the peon and when she went to the Pathik Ashram, the complaint was already written. That she does not remember in which room in the school, she sat and does not remember the size of the room and as to whether it was about 20 x 30 feet. That she does not know the distance of the nail from where the accused no. 1 was sitting and if the accused no. 1 wanted to go to the nail where the purse was hanging, she had to stand up. That when they went into the room of the accused no. 1, an another lady was seated and there were other children and when they went for the first time, they did not have any conversation with the accused no. 1. That when they went again in the room of the accused no. 1, a lady was seated there and the accused no. 1 did not have any conversation with the complainant. That the accused no. 1 did not demand for any amount from the complainant and they did not have a conversation about any money. That the Page 29 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined complainant herself had removed the amount from her purse and the panchnama was written outside in the ground. That she has not affixed her signature on the complaint and she does not know whether the numbers of the currency notes were written in part-II of the panchnama. That she was not taken to look for the accused no. 2.
9.2 The prosecution had examined PW3 - Shankarbhai Khatubhai Parmar at Exh. 72 and the witness is the Trap Laying Officer who has stated that on 05.07.2000 when he was the Police Inspector, ACB Ahmedabad Rural and Gandhinagar Police Station, at around 12:30 pm, he received a call of Alpaben Kamleshbhai Patel of Prantij who told him that an employee was asking for illegal gratification in Mansa Taluka. That he called her on 06.07.2000 to the Pathik Ashram and called two panch witnesses and Woman Constable - Ramilaben along with the members of the raiding party. That in Room No. 8, they undertook the procedure and the witness has narrated in detail all the procedure that he had undertaken in Room No. 8, Pathik Page 30 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined Ashram for the demonstration of anthracene powder and ultraviolet lamp and thereafter, he had given the necessary instructions to the complainant and the panch witnesses and they had gone to Varsoda Primary School and after the predetermined signal was given, he went into the school and caught the accused no. 1. That the tests were done and the tainted currency notes were recovered from the purse of the accused no. 1. That the purse and the currency notes were seized and the panchnama part-II was drawn. During the cross-examination by the learned advocate for the accused, the witness has stated that he had used the bottle of anthracene powder which was used by his predecessor and when he received the bottle there was no seal on the bottle. That they seized all the items on which the traces of anthracene powder are found and the complaint was written by Police Inspector - K.K. Mysorewala in his handwriting. That the panchnama was written by writer - Fataji Aataji. That when he went to the room of the accused no. 1, the wall in front was about 15 feet away and the purse was hanging on the nail on the front wall. That the tainted Page 31 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined currency notes were found in the middle pocket of the purse and no marking was done on the inside pocket of the purse. That the panchnama part-II was written in the office of the Principal and no register or record was seized from the school. During investigation, it was also found that Ilaben was present with the accused no. 1 when the complainant had gone to meet the accused no. 1 but he had not inquired about the work of the complainant. That accused no. 2 was not present during the trap and he had not met the accused no. 2 after the procedure of trap was concluded. That he had not inquired about the accused no. 2 at the time of the trap and the accused no. 1 was standing in the lobby of the school when she was caught. That he had not inquired as to who was in the room of the accused no. 1 and Ilaben was present in the room of the accused no. 1.
9.3 The prosecution has examined PW4 - Kerman Khurshid Mysorewala at Exh. 76 and the witness is the Investigating Officer who has taken over the investigation from the Trap Laying Officer. The witness has stated that he had recorded the statements of the connected witnesses and Page 32 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined taken the documents of the accused and after the order of sanction for prosecution was received, he had filed the charge-sheet before the Sessions Court. During the cross- examination by the learned advocate for the accused, the witness stated that during investigation, it was found that the accused no. 1 had not demanded any amount of illegal gratification for herself and the panchnama was not written at Varsoda. That the complaint was written in his presence and he was present when the panchnama was written by the writer of Police Inspector - Parmar Saheb. The panchnama Part-II was written in the school in the Principal Office and they had not searched the panch witnesses. That the complaint is written in his writing and the signatures of the panch witnesses are not taken in the complaint. That he had written the complaint in his handwriting, was present during the trap and he was the Investigating Officer and has filed the charge-sheet. That the accused no. 2 was not present at the time of the trap and the accused no. 2 was not brought to the place of trap before the panchnama was completed. That the accused no. 2 was found after a week Page 33 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined and no effort was made to bring the accused no. 2 to the spot immediately after the trap.
10. On minute appreciation of the entire evidence of the prosecution, the infirmities in the case of the prosecution have emerged on record and it is found that the accused no. 1 did not demand any amount of illegal gratification. As per the complainant and the complaint, the demand was made by the accused no. 2 but there is no clear evidence that the demand was made for not making any report regarding the work of the complainant where she had failed student - Suresh Thakore in Class III or Class IV. No document showing that the student was in fact failed and that the student had 80% attendance in the school and could not be failed, has been seized and produced on record and except for the bald allegation of the complainant that the amount was demanded by the accused no. 2 in the presence of the accused no. 1, there is no corroboration of any sort regarding the demand. What emerges on record is that the complainant was absent from duty from June 1999 to February 2000 and the complainant was unaware of the Page 34 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined rules and regulations of the Education Department as also was not aware of which class she was the class teacher. It is admitted that at the time of the acceptance, the accused no. 2 was not present and even at the time of the trap, there is no evidence that the accused no. 1 demanded the amount of illegal gratification from the complainant. That the complainant herself went and offered the amount to the accused no. 1 who initially refused to take the amount but on insistence by the complainant, the accused no. 1 accepted the amount. As per the complainant and the panch witness, the amount was accepted by the complainant and placed in her purse which was hanging on the nail on the wall but the complainant has specifically stated that the accused no. 1 accepted the amount while she was seated and during cross-examination of the Trap Laying Officer it has emerged on record that the purse was hanging on a nail on the wall which was 15 feet away from the place where the accused no. 1 was seated. There is no evidence in the deposition of the complainant or the panch witness that the accused no. 1 had accepted the amount Page 35 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined and had got up from her seat and walked 15 feet away to the wall, and had placed the currency notes in her purse. The evidence on record is to effect that when the complainant and the panch witness went for the first time in the office of the accused no. 1, there were a number of students and other persons and they came out of the office of the accused no. 1 and after sometime, once again when they went into the office, they were fewer persons but the presence of Ilaben who was the cousin of the complainant is throughout. It is pertinent to note that Ilaben has not been examined by the prosecution even though Ilaben is an eye witness to the incident and there are a number of contradictions in the deposition of the prosecution. The Investigating Officer PW4 - K.K. Mysorewala has written the complaint of the complainant and he was present during the trap and is the Investigating Officer and the shadow of doubt is cast on the credibility of the witness and the evidence of the prosecution. Moreover, the panch witness has stated that the panchnama was written in the ground of the school and the panchnama was written by the police Page 36 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined officer, and the panch witness did not dictate the panchnama, whereas the Trap Laying Officer and Investigating Officer have stated that the panchnama was written in the office of the accused no. 1.
11. On minute re-appreciation of the entire evidence of the prosecution and the impugned judgment and order, it appears that the learned Trial Court has thoroughly appreciated all the evidence on record and has given due consideration to all the material pieces of evidence. The learned Trial Court has discussed all the oral as well as documentary evidences and if the evidence produced by the prosecution is examined in light of the law laid down by the Constitution Bench in the case of Neeraj Dutta (Supra), it appears that the learned Trial Court has arrived at findings which are legal and proper and there are no errors of law or facts. Moreover, the view taken by the learned Trial Court in acquitting the accused is fairly possible and there is no illegality and perversity in the impugned judgment and order of acquittal.
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NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined
12. In view of the settled position of law in the decisions of Mallappa (Supra) and Neeraj Dutta (Supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
13. The impugned judgment and order passed by the learned Special Judge and Additional Sessions Judge, Fast Track Court No. 2, Gandhinagar in Special ACB Case No. Page 38 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024 NEUTRAL CITATION R/CR.A/254/2006 JUDGMENT DATED: 20/08/2024 undefined 7/2004 on 29.09.2005 is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) Vasim Page 39 of 39 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:04:03 IST 2024